TITLE IX VS. DUE PROCESS
In sexual assault cases on campus, we need to protect the rights of all students
In a series of meetings last month, Education Secretary Betsy DeVos signaled strong disagreement with the Obama administration’s aggressive erosion of due process protections for college students accused of sexual assault. While deploring the horrors of the offense, DeVos added that “a system without due process protections … serves no one.”
This was a welcome change from the decrees issued in 2011 by the Obama-era Office for Civil Rights (OCR), which told colleges to avoid any due process safeguards that would “restrict or unnecessarily delay the protections provided by Title IX” to accusers.
Surveying the damage to fundamental fairness from the Obama-era policies, a recent study by UCLA professor John Villasenor concluded that an innocent student has as much as a one-inthree chance of being found guilty by today’s campus sexual assault tribunals.
STANDARD OF PROOF
The policy proceeded from the counterfactual claim that sex crimes — which are no doubt a serious problem — were sweeping through the nation’s campuses like an epidemic. In fact, the number declined dramatically from 1994 to 2010.
With vocal support from President Obama and Vice President Biden, the OCR used this myth to reinterpret Title IX, the statute barring sex discrimination at schools that receive federal funds.
The OCR ordered universities to use the lowest possible standard of proof (preponderance of evidence, or 50.01%) and allow accusers to appeal not-guilty findings. It also discouraged colleges from allowing cross-examination of the accusers, and urged institutions to deny the accused any right to a hearing by giving all power to a single bureaucrat to act as investigator, prosecutor, judge and jury.
During DeVos’ meetings, the accusers’ rights organization Know Your IX organized a protest outside the Department of Education, demanding a blanket retention of Obama’s policies. The group was joined by Sen. Kirsten Gillibrand, D-N.Y., who maintained that “if Secretary DeVos rolls back these protections, justice will not be possible.”
This from a senator who had publicly described former Columbia student Paul Nungesser as a “rapist” even after he was cleared by both the university and police.
Ironically, as Gillibrand was protesting outside the Education Department, a New York appellate court upheld a lawsuit by an accused student against Skidmore College. In 2015, the Skidmore accuser told college officials that a male student had forced her to perform oral sex 21 months previously. The fivejudge panel faulted the college for giving weight to “little more than gossip,” and ordered Skidmore to readmit him and expunge his disciplinary record.
IGNORED BY THE NEWS
Skidmore was the 53rd college or university to find itself on the losing end of a lawsuit filed by an accused student in the past four years. This body of law — virtually ignored by the news media — is striking given the traditional reluctance of courts to secondguess college disciplinary actions.
Despite suggestions by defenders of Obama policies that colleges have responded to these court decisions by creating fairer procedures for accused students, schools have actually scaled back the rights promised to the accused. In May 2016, The National Association of College and University Attorneys published a research note urging colleges and universities to “promptly destroy” documents such as “emails … staff notes … notes of hearing participants during a disciplinary hearing, drafts of hearing outcome reports and other such working papers,” all of which “might actually prove very useful to a plaintiff ’s lawyer” in a subsequent lawsuit.
In a ruling against Brandeis University last year, U.S. District Judge F. Dennis Saylor wrote that if a student “is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision. ... A fair determination ... requires a fair process, not tilted to favor a particular outcome, and a fair and neutral fact-finder.”
The past six years have shown that condemnations will greet any effort to establish a fairer campus system, one that will protect the rights of innocent accused students as well as of the victims. But fairness is what we need. And while a shift in federal policy will not, alone, restore justice on campus, it’s a necessary first step.